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Zimmermann v. Garden City Osteopathic Hospital11/26/2002
to plaintiffs' complaint are not proper affidavits and plaintiffs failed to file an affidavit of merit to the complaint when the complaint was first filed on March 12, 2001. See id. at 712. The statute of limitations had expired by the time the complaint was filed on May 7, 2001, with proper affidavits of merit.
" plaintiff who files a medical-malpractice complaint without the required affidavit is subject to a dismissal without prejudice, and can refile properly at a later date. However, such a plaintiff still must comply with the applicable period of limitation." Scarsella, supra at 551-552. Here, proper affidavits of merit were not filed with the complaint until May 7, 2001; however, the limitations period expired on April 13, 2001. Therefore, the medical-malpractice complaint was not timely filed in the present case and the trial court did not err in granting summary disposition in favor of defendant and in dismissing the case with prejudice.
Affirmed.
Kathleen Jansen
Donald E. Holbrook, Jr.
COOPER, J. (concurring).
I concur with my esteemed colleagues, but write to emphasize the phrase constrained to follow Holmes v Michigan Capital Medical Center, 242 Mich App 703; 620 NW2d 319 (2000).
There was a time in this state's jurisprudence when this type of motion would have been considered to be form over substance. The trial judge would have had the discretion to make such determinations in the interest of justice so that facially legitimate claimants had full access to the courts.
Jessica R. Cooper
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